Avitia v. Superior Court CA3
Petitioner Leo Avitia seeks extraordinary writ relief from the trial court’s order denying his Penal Code section 995 motion to dismiss the indictment charging him with second degree murder and other offenses. The motion was based on the deputy district attorney’s dismissal of a grand juror for bias outside of the presence of the other grand jurors. The People concede the deputy district attorney’s dismissal of the grand juror was legal error. Therefore, the question presented by this petition is whether that error required the trial court to grant petitioner’s motion to dismiss. On the record presented in this case, we conclude the deputy district attorney’s error was not structural, and petitioner has failed to demonstrate he was denied a substantial right or that the error substantially impaired the independence and impartiality of the grand jury. Accordingly, while the prosecutor’s violation of statutory requirements is troubling, the trial court’s decision to
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